Freedom to Marry

Defending Common-Law Marriage

Background: The Oklahoma House of Representatives has passed a bill which would destroy common-law marriage in the state. Immediately below is a letter to the Tulsa World defending the right of individuals to contract to marry one another without approval of church or state. Further below is a follow-up article.

In 1980, my spouse and I married each other. We were not married by the State. We were not married by a pastor or a justice of the peace. We were not married "by" anybody. We did not even seek our families' approval. As free people, we chose to marry one another, and quite intentionally chose to marry each other here because, despite so many other tyrannical notions, Oklahoma law permitted free people to marry one another (at least if they were heterosexual and monogamous). Representative Ray Vaughn of Edmond says common-law marriages are "an affront to legitimate marriage." Our marriage of seventeen years and three children, legal and recognized by the State of Oklahoma, he has just as much as called illegitimate! Rep. Vaughn, you owe us an apology.

I sympathize, a little, with the judges, that divorce or estate problems can arise from poorly-substantiated common-law marriages. It is important that if (as the law has been) a man and woman "hold themselves forth as married," and they have property or children, they must do so in some public fashion to establish the legitimacy of their marriage for legal, financial, and inheritance purposes. (Actually, it is my opinion that there are no illegitimate children, and that every birth signifies a kind of marriage, regardless of the legal marital status of the parents, and regardless of the effective "bigamy" that may sometimes result; the separation of "marriage" from family-creation is one of the greatest peculiarities of our age. But that's another matter.) In our marriage, substantiation took the form of re-writing my will to identify myself and my spouse as married, and we let our friends and family know we were subsequently to be regarded as married from 1980 February 5. People who marry one another by any means without proper thought to the legal ramifications are asking for "headaches," as the World article put it. The burden of proof should lie with the couple. For those who wish to do so, registration with the State is a convenient way of substantiating marriage. However, the convenience of the State is no excuse for obviating adult liberty to marry one another.

Marriage Liberty, not Marriage License

In response to the article above, a lawyer replied to Law Forum on CompuServe. My correspondent suggested that the traditional reasons for common-law permission were antiquated and reiterated the legal difficulties and fraud which may occur due to common-law arrangements and asked how a requirement for a marriage license would violate the right of free adults to marry. This is my reply, slightly edited.

As if state-approved marriage is not a frequent source of litigation? I noted the difficulties with freedom to marry, and I noted the importance of careful establishment of even a common-law marriage, and I protested that the convenience of the state or the occurrence of difficulties is not sufficient cause for regulation. If, after such statements, you can still ask me to "explain exactly how much of a hardship it would have been for you to obtain a license," I despair of doing so as much as I would in attempting to explain the benefits of a free-market system to an ardent communist.

The point is not that we would have found it "much of a hardship" to kowtow to State overcontrol of a private contract, but whether the State has the right to stick its fat Big Brotherly nose in our private marriage at all! You may perhaps gather something of my radical libertarianism if I point out that I in the same vein protest such laws as driver's licenses, and Social Security registration, both of which are on my mind especially this weekend as I have just obtained an Oklahoma driver's permit for my daughter (as evidenced by my fingernail gouges in the dashboard), and attempted to, at long last, and under protest, register my three offspring with the Socialist Insecurities Pyramid Scam office.

(Amusingly, the SS would not accept their birth certificates as sufficient, and required a second i.d. Since they are all home-schooled, we have no school i.d.s to offer, and we have had to ask our physician to provide some kind of identification that they are who their parents say they are, which was the only other form of i.d. the SS serf said was acceptable. With redoubled irony, I note that now that the birth certificate which the SS said was insufficient has been used to obtain a driver's permit for my daughter, she can turn around and use that permit as i.d. to register with the SS. Go figure that!)

That which it is unnecessary for the state to do should not be done. Mary Jo and I have been married for over twenty years, legally, without recourse to State or Church, and since such liberty is feasible, it is not our burden to suggest why it would be a "hardship" to register with the Gummint, but the Gummint's impossible burden to prove why private marriage contract should not be valid without State approval. That others attempt criminal abuse of liberty should no more be a cause for us to be regulated than the private consumption of a substance by sociopaths should impinge upon the rights of peaceful and non-trespassing individuals to acquire and consume as they will. But of course, we know where our Prohibitionist-mad nation stand on that!

Marriage liberty, not marriage license. [grin] The right of the State to approve marriage also, no matter how careful the wording of the legislation, ultimately gives the State the right to disapprove as well, and that includes the prohibition of forms of contract which, as with liberty of speech or press, you or I might not like for ourselves or our children, as polygamy or homosexual life-contracts, neither of which has approval in any state, yet, last I knew, although the latter was being softened up in some states.

Thanks for the opportunity to attempt expansion on this, even if I'm not all that effective in my attempt.

…While leaving the complex matter of marriage up to two consenting adults and their community is undoubtedly the best option in a libertarian utopia, the unfortunate reality is that doing so in the American legal system today would put a couple at significant disadvantage. To be specific, the federal government has a number of tax and entitlement benefits earmarked specifically for married couples, and Alabama’s failure to recognize a couple’s nuptials — gay or straight — could lead to a bureaucratic headache.…